In Utah Dep’t of Transportation v. Coalt, Inc., No. 20161063 (Aug. 17, 2020), the Utah Supreme Court dealt with a public use and a just comp issue.

The first is perhaps the more interesting. After a federal court upheld environmentalists’ challenge to the Environmental Impact Statement prepared by UDOT for its Legacy Parkway Project and enjoined highway construction, UDOT and the enviros settled. The settlement called for “additional measures to protect the wetlands and its wildlife inhabitants from the effects of the Parkway.” Slip op. at 6.

One of those measures? Get additional land for the Legacy Nature Preserve. Guess whose property was, as a consequence, now slated for eminent domain? You guessed it: Coalt’s. It objected to the taking, “arguing that UDOT did not have the authority to condemn Parcel 84 because it was not doing so for a transportation purpose or a public use, but to settle third-party litigation and mitigate a future unspecified transpiration project.” Slip op. at 6. The trial court rejected the argument, and the court of appeals affirmed.

As did the Utah Supreme Court. The court held that the statute authorizing UDOT to take property for highways includes a provision allowing for acquisition for mitigation of impacts from public transportation projects. Slip op. at 8. In other words, UDOT’s authority is not limited to taking property for highways, but includes taking property to offset the impacts from highways. The court concluded that “UDOT agreed to take the additional mitigation property as part of a settlement is not legally relevant in and of itself. What matters is the purpose of the taking.” Slip op. at 8. The environmental litigation had a public purpose:

The very focus of the federal litigation was the question of what steps were necessary to minimize the environmental impact of running the Legacy Parkway along the wetlands of the Great Salt Lake. UDOT believed the 2000 EIS provided sufficient environmental protection. But the public interest litigants disagreed. The litigants did not advance a private, personal agenda. Rather their arguments centered on the sufficiency of the environmental impact statement.

Slip op. at 9.

What of Coalt’s “appeasement” argument? You know, UDOT took our property in order to satisfy the environmental plaintiffs, not because it really needs the land for the highway project. Nope, the court held, “the fact that the public interest litigants influenced the final amount of mitigation that UDOT condemned for the Parkway is not necessarily material.” Slip op. at 11. A lawsuit, you see, is just another means of getting the “input from interested constituencies” that is just a natural part of the planning process. The nature of the input only becomes relevant “if the facts showed that UDOT actually took Parcel 84 to do something other than mitigate the effects of the Parkway, or that UDOT acted in bad faith.” Slip op. at 11.

Now hold on just a sec: isn’t there a difference between gathering input as part of the usual planning process, and making a one-on-one agreement with an identified private party in which the condemnor agrees to take identified private property. That reminds us of a case (one of ours) where the court came to a slightly different conclusion. But here, the Utah court concluded it was okay for the condemnor to agree with third parties to take Coalt’s property in order to settle an unrelated dispute, something no private litigant could do. 

After years of delay and having its first EIS and CWA permit thrown out by the Tenth Circuit, UDOT determined that the settlement agreement was necessary to end the dispute over environmental mitigation and lift the federal injunction that had halted the project. As in G. Kay, this demonstrates that UDOT’s taking of Parcel 84 was motivated by its desire to proceed with the project. This supports rather than undermines the conclusion that the taking and associated mitigation was for the Parkway. The legislature and the governor agreed that the settlement was necessary to proceed with the project. We will not second-guess that determination absent an indication of bad faith.

Slip op. at 11.

And what of the just comp issue? There, the Utah Supreme Court held that, despite inadequate briefing on appeal by UDOT on this issue, the trial court correctly concluded that the compensation owed to Coalt does not include the increase in the value of its land attributable to the highway project. Scope of the project, and so forth. The opinion doesn’t contain a whole lot of independent analysis of the issue, and merely concludes that Coalt’s appeal of the trial court’s rejection of the argument did not provide a “plausible basis for reversal.” Therefore, the Supreme Court concluded, the court of appeals slap down reversal on the basis of UDOT’s poor appellate briefing of the issue itself was an error.   

Utah Dep’t of Transportation v. Coalt, Inc., No. 20161062 (Utah Aug. 17, 2020)